Karnataka High Court
Sri Uma Mahesh P vs Sri Mithun Bhuvi on 27 October, 2025
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NC: 2025:KHC:42641
CRL.A No. 2216 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2216 OF 2018 (A-)
BETWEEN:
1. SRI UMA MAHESH P
S/O PUTTASWAMACHAR,
AGED ABOUT 36 YEARS,
RESIDING AT NO 30,
3RD FLOOR,
AVENUR ROAD CROSS,
CHOWDESHWARIGUDI
BEEDI SARADA MARKET CITY STREET BENGALURU -
560002
...APPELLANT
(BY SRI. B J KRISHNA, ADVOCATE)
AND:
Digitally signed by
1. SRI MITHUN BHUVI
LAKSHMINARAYAN S/O GANESH BHUBI
N
Location: HIGH AGED ABOUT 33 YEARS NO 11/1,
COURT OF A T SRTEET, B FLOOR,
KARNATAKA
CUBBONPET, BENGALURU - 560002
AND ALSO RESIDING AT
SRI MITHUN BHUI
S/O GANESH BHUI
RESIDING AT C/O AT AJAY BHUVI NO 24,
SANJEEVAPPA LANE, CUBBONPET CROSS,
BENGALURU - 560002
...RESPONDENT
(BY SRI H.M. GIRISHA, ADVOCATE)
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CRL.A No. 2216 of 2018
HC-KAR
THIS CRL.A. IS FILED U/S.378(4) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT DATED 25.08.2018 PASSED BY THE 12TH ADDL.
AND XXXVII ADDL.C.M.M., BENGALURU IN
C.C.NO.25502/2017-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Complainant/appellant has preferred this appeal against
the Judgment of acquittal dated 25th August 2018 passed in CC
No.25502 of 2017 by XII Additional Chief Metropolitan
Magistrate, Bengaluru (for short "the trial Court").
2. Brief facts leading to this appeal are that the
appellant filed complaint under section 138 of Negotiable
Instruments Act, 1881. Cognizance was taken by the trial
Court and case was registered in CC No.25502 of 2017. Plea
was recorded. Accused pleaded not guilty and claimed to be
tried. To prove the guilt of the accused, complainant examined
as PW1 and six documents were marked as Exhibits P1 to P6.
Thereafter, accused has adduced his evidence as DW1 and 10
documents were marked as Exhibits D1 to D10. Having heard
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on both sides, the trial Court acquitted the accused. Being
aggrieved by the Judgment of acquittal, complainant has
preferred this appeal.
3. Sri B.J. Krishna, learned Counsel appearing for the
complainant submits that the complainant has proved the
essential ingredients of section 138 of NI Act. However, the
trial Court has acquitted the accused on the ground that the
complainant has misused the cheque issued by the accused in
favour of one Babu on the basis of defence evidence adduced
by the accused by way of affidavit on 27th July 2018. The
learned Counsel would submit that the same is not permissible
under law. He would submit that the acceptance of evidence
way of affidavit, is not permissible under Section 145 of
Negotiable Instruments Act. To substantiate his argument, he
would rely on the decision of the Co-ordinate Bench of the Court
in Writ Petition No.3519 of 2024 decided on 19th July, 2024
rendered in the case of MRS. ZAHEDA INAMDHAR v. DR.
FATIMA HASSINA SAYEEDHA and Order passed in Crl.RP
No.1419 of 2023 dated 29th August, 2024 rendered in SRI
SATHYA KUMAR v. LEELAVATHI AND OTHERS, and sought to
remand the case to the trial Court with a direction to provide an
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opportunity to the accused to adduce his oral evidence instead
of affidavit evidence.
4. Respondent/accused absent and unrepresented.
Hence, argument on behalf of respondent, is taken as nil.
5. Having heard the arguments advanced by the
learned Counsel for the appellant and on perusal of materials
placed before me, the following points would arise for
consideration:
1) Whether the complainant/appellant has made
out to ground to remand the case to the trial
Court with a direction to provide an opportunity
to the accused/respondent to adduce his
evidence in accordance with law?
2) What order?
Regarding Point No.1:
6. I have examined the materials place before me. After
completion of evidence, DW1-Mithun Bhui has filed evidence by
way of affidavit on 27th July 2018. The Co-ordinate Bench of
this Court relying upon the decision of the Apex Court in the
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case of MANDOVI CO-OPERATIVE BANK LIMITED v. NIMESH B.
THAKORE reported in (2010)3 SCC 83 and other decisions, has
held that the receiving of evidence by way of by the affidavit is
illegal. Without expressing any opinion, on the merits of the
case, keeping in mind the aforestated decisions, I am of the
opinion that the complainant/appellant has made out ground to
remand the case to the trial Court with a direction to provide
opportunity to the respondent/accused to adduce his oral
evidence instead of filing evidence by way of affidavit.
Accordingly, the appellant/complainant has made out a ground
to remand the case to the trial Court with a direction to provide
an opportunity to the accused/respondent to adduce his oral
evidence. Hence, I answer Point No.1 in the affirmative.
Regarding Point No.2:
7. In the result, I proceed to pass the following:
ORDER
i) Appeal is allowed in part;
ii) Judgment of acquittal dated 25th August 2018
passed in CC No.25502 of 2017 by XII
Additional Chief Metropolitan Magistrate,
Bengaluru, is set aside;
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iii) Matter is remitted back to the trial Court with a
direction to provide opportunity to the
accused/respondent to adduced his oral
evidence, instead of filing affidavit evidence,
and proceed with the case in accordance with
law;
iv) Registry to send the copy of this order along
with trial court records to the concerned Court;
v) Complainant-appellant is directed to appear
before the trial Court on 01st December, 2025,
without seeking any further notice;
vi) The trial Court is directed to dispose of the case
as expeditiously as possible, as the matter is of
the year 2017.
Sd/-
(G BASAVARAJA)
JUDGE
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